As filed with the Securities and Exchange Commission on September 12, 2018

Registration No. 333-            

 

 

 

 UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

 

Sorrento Therapeutics, Inc.

(Exact name of Registrant as specified in its charter)

 

 
Delaware   33-0344842

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

4955 Directors Place

San Diego, California 92121

(Address of principal executive offices, including zip code)

 

 

Amended and Restated 2009 Stock Incentive Plan, as amended

(Full title of the plan)

 

Dr. Henry Ji

Chairman of the Board of Directors, President and Chief Executive Officer

Sorrento Therapeutics, Inc.

4955 Directors Place

San Diego, California 92121

(858) 203-4100

(Name, address and telephone number, including area code, of agent for service)

 

 

 

Copies to:

 

Jeffrey T. Hartlin, Esq.

Paul Hastings LLP

1117 S. California Avenue

Palo Alto, California 94304

(650) 320-1800

 

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer   ¨   Accelerated filer   x
       
Non-accelerated filer   ¨  (Do not check if a smaller reporting company)   Smaller reporting company   ¨
             
        Emerging growth company   ¨

  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

 

 

 

CALCULATION OF REGISTRATION FEE

                 
Title of Securities to be Registered  Amount
to be
Registered(1)
   Proposed
Maximum
Offering Price
Per Share
   Proposed
Maximum
Aggregate
Offering Price
   Amount of
Registration Fee
 
Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the Amended and Restated 2009 Stock Incentive Plan, as amended   12,600,000(2)  $5.075(3)  $63,945,000(3)  $7,961.15 

 

 

 

(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (the “Registration Statement”) shall also cover any additional shares of common stock, $0.0001 par value per share (the “Common Stock”), of the Registrant (defined below) that become issuable under the Sorrento Therapeutics, Inc. Amended and Restated 2009 Stock Incentive Plan, as amended (the “2009 Plan”), by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.
   
(2) Represents: (1) 5,000,000 shares of Common Stock that were added to the shares reserved for issuance under the 2009 Plan on July 28, 2017 and (2) 7,600,000 shares of Common Stock that were added to the shares reserved for issuance under the 2009 Plan on August 24, 2018.
   
(3) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act. The proposed maximum aggregate offering price per share and the proposed maximum aggregate offering price with respect to these shares are calculated based on the average of the high and low prices of the Common Stock as reported on the Nasdaq Capital Market on September 7, 2018, a date within five business days prior to the filing of this Registration Statement.

 

 

 

 

 

REGISTRATION OF ADDITIONAL SECURITIES

 

EXPLANATORY NOTE

 

The Registrant has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended, to register 12,600,000 additional shares of Common Stock issuable pursuant to the 2009 Plan. The Registrant’s stockholders have previously approved the 2009 Plan, including the shares of Common Stock available for issuance pursuant thereto and, on July 28, 2017 and August 24, 2018, approved amendments to the 2009 Plan to, among other things, increase the number of shares of Common Stock available for issuance pursuant the 2009 Plan by 5,000,000 shares and 7,600,000 shares, respectively.

 

Pursuant to the Registration Statements on Form S-8 (File Nos. 333-195487, 333-198307 and 333-213130) filed by the Registrant with the Securities and Exchange Commission (the “SEC”) on April 25, 2014, August 22, 2014 and August 15, 2016 (the “Prior Registration Statements”), the Registrant previously registered an aggregate of 6,260,000 shares of Common Stock under the 2009 Plan.

 

In accordance with General Instruction E to Form S-8, the contents of the Prior Registration Statements are hereby incorporated by reference.

 

PART II

  

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed by the Registrant with the SEC are hereby incorporated by reference into this Registration Statement:

 

(a)The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the SEC on March 16, 2018;

 

(b)The Registrant’s Annual Report on Form 10-K/A for the fiscal year ended December 31, 2017, filed with the SEC on April 26, 2018;

 

(c)The Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on July 19, 2018, as amended by the supplements to the Definitive Proxy Statement on Schedule 14A, filed with the SEC on July 20, 2018 and August 2, 2018;

 

(d)The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2018, filed with the SEC on May 10, 2018;

 

(e)The Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2018, filed with the SEC on August 9, 2018;

 

(f)The Registrant’s Current Reports on Form 8-K filed with the SEC on February 27, 2018, March 19, 2018, March 27, 2018, April 18, 2018, April 27, 2018, June 14, 2018, August 28, 2018 and September 10, 2018; and

 

(g)The description of the Registrant’s common stock set forth in the Registrant’s Registration Statement on Form 8-A (File No. 001-36150), filed with the SEC on October 23, 2013, including any amendments or reports filed for the purpose of updating such description.

 

All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part of this Registration Statement from the date of the filing of such reports and documents, except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions.

 

For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

 

 

 

You should rely only on the information provided or incorporated by reference in this Registration Statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this Registration Statement or any related prospectus is accurate as of any date other than the date on the front of the document.

 

You may contact the Registrant in writing or orally to request copies of the above-referenced filings, without charge (excluding exhibits to such documents unless such exhibits are specifically incorporated by reference into the information incorporated by reference into this Registration Statement). Requests for such information should be directed to:

 

Sorrento Therapeutics, Inc.

4955 Directors Place

San Diego, CA 92121

Attn: Corporate Secretary

Phone: (858) 203-4100

 

Item 8. Exhibits.

 

Exhibit
Number
  Description
     
3.1   Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to Form S-3 filed with the SEC on June 24, 2013).
     
3.2   Certificate of Amendment of the Restated Certificate of Incorporation of Sorrento Therapeutics, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on August 1, 2013).
     
3.3   Bylaws (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on October 23, 2009).
     
4.1   Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on October 23, 2009).
     
4.2   Amended and Restated 2009 Stock Incentive Plan, as amended (incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the SEC on August 28, 2018).
     
5.1   Opinion of Paul Hastings LLP.
     
23.1   Consent of Deloitte & Touche LLP.
     
23.2   Consent of Mayer Hoffman McCann P.C.
     
23.3   Consent of Paul Hastings LLP is contained in Exhibit 5.1 to this Registration Statement.
     
24.1   Power of Attorney is contained on the signature page.

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, California, on September 12, 2018.

 

  SORRENTO THERAPEUTICS, INC.  
       
  By: /s/ Henry Ji, Ph.D.  
   

Henry Ji, Ph.D.

Chairman of the Board of Directors, President and Chief Executive Officer

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Henry Ji, Ph.D. and Jiong Shao, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature   Title   Date
         
/s/ Henry Ji, Ph.D.   Chairman of the Board of Directors, Chief Executive Officer and President   September 12, 2018
Henry Ji, Ph.D.   (Principal Executive Officer)    
         
/s/ Jiong Shao   Executive Vice President and Chief Financial Officer   September 12, 2018
Jiong Shao   (Principal Financial and Accounting Officer)    
         
/s/ Dorman Followwill   Director   September 12, 2018
Dorman Followwill        
         
/s/ Kim Janda, Ph.D.   Director   September 12, 2018
Kim D. Janda, Ph.D.        
         
/s/ David Lemus   Director   September 12, 2018
David Lemus        
         
/s/ Jaisim Shah   Director   September 12, 2018
Jaisim Shah        
         
/s/ Yue Alexander Wu, Ph.D.   Director   September 12, 2018
Yue Alexander Wu, Ph.D.        

 

 

 

 

Exhibit 5.1

 

  

September 12, 2018 91966.00001

 

Sorrento Therapeutics, Inc.

4955 Directors Place

San Diego, CA 92121

 

Re:Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Sorrento Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the registration statement on Form S-8 to be filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) on or about the date hereof (the “Registration Statement”) to effect registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 12,600,000 shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share, issuable upon the vesting and exercise of awards to be granted by the Company pursuant to the Company’s Amended and Restated 2009 Stock Incentive Plan (the “Equity Plan”).

 

As such counsel and for purposes of our opinion set forth below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such documents, resolutions, certificates and other instruments of the Company and corporate records furnished to us by the Company, and have reviewed certificates of public officials, statutes, records and such other instruments and documents as we have deemed necessary or appropriate as a basis for the opinion set forth below, including, without limitation:

 

(i)the Registration Statement;

 

(ii)the Restated Certificate of Incorporation of the Company, as certified by the Office of the Secretary of State of the State of Delaware on September 12, 2018;

 

(iii)the Bylaws of the Company as presently in effect, as certified by an officer of the Company as of September 12, 2018;

 

(iv)the Equity Plan and the forms of award agreements related thereto;

 

(v)a certificate, dated as of September 12, 2018, from the Office of the Secretary of State of the State of Delaware as to the existence and good standing of the Company in the State of Delaware (the “Good Standing Certificate”); and

 

(vi)the resolutions adopted by the board of directors of the Company and by the stockholders of the Company regarding the Equity Plan and other matters related thereto, as certified by an officer of the Company on September 12, 2018.

 

In addition to the foregoing, we have made such investigations of law as we have deemed necessary or appropriate as a basis for the opinion set forth in this opinion letter.

 

 

 

 

 

 

 

Sorrento Therapeutics, Inc.

September 12, 2018

Page 2

 

In such examination and in rendering the opinion expressed below, we have assumed, without independent investigation or verification: (i) the genuineness of all signatures on all agreements, instruments, corporate records, certificates and other documents submitted to us; (ii) the authenticity and completeness of all agreements, instruments, corporate records, certificates and other documents submitted to us as originals; (iii) that all agreements, instruments, corporate records, certificates and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other copies conform to originals thereof, and that such originals are authentic and complete; (iv) the legal capacity and authority of all persons or entities (other than the Company) executing all agreements, instruments, corporate records, certificates and other documents submitted to us; (v) the due authorization, execution and delivery of all agreements, instruments, corporate records, certificates and other documents by all parties thereto (other than the Company); (vi) that no documents submitted to us have been amended or terminated orally or in writing except as has been disclosed to us in writing; (vii) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion letter are true and correct; (viii) that there has not been any change in the good standing status of the Company from that reported in the Good Standing Certificate; and (ix) that each of the officers and directors of the Company has properly exercised his or her fiduciary duties. As to all questions of fact material to this opinion letter, and as to the materiality of any fact or other matter referred to herein, we have relied (without independent investigation or verification) upon representations and certificates or comparable documents of officers and representatives of the Company. Our knowledge of the Company and its legal and other affairs is limited by the scope of our engagement, which scope includes the delivery of this opinion letter. We do not represent the Company with respect to all legal matters or issues. The Company may employ other independent counsel and, to our knowledge, handles certain legal matters and issues without the assistance of independent counsel. We have also assumed that the individual issuances, grants, awards or grants of purchase rights under the Equity Plan will be duly authorized by all necessary corporate action of the Company and duly issued, granted or awarded and exercised in accordance with the requirements of law, the Equity Plan and the agreements, forms of instrument, awards and grants duly adopted thereunder.

 

Based upon the foregoing, and in reliance thereon, and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we are of the opinion that the Shares are duly authorized and, when issued and sold as described in the Registration Statement and in accordance with the Equity Plan and the applicable award agreements or forms of instrument evidencing purchase rights thereunder (including the receipt by the Company of the full consideration therefor), will be validly issued, fully paid and nonassessable.

 

Without limiting any of the other limitations, exceptions and qualifications stated elsewhere herein, we express no opinion with regard to the applicability or effect of the laws of any jurisdiction other than the General Corporation Law of the State of Delaware, as in effect on the date of this opinion letter.

 

This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly stated herein from any matter addressed in this opinion letter.

 

 

 

 

 

Sorrento Therapeutics, Inc.

September 12, 2018

Page 3

 

This opinion letter is rendered solely in connection with the issuance and delivery of the Shares as described in the Registration Statement and in accordance with the terms of the Equity Plan and the applicable award agreement or form of instrument evidencing purchase rights thereunder. This opinion letter is rendered as of the date hereof, and we assume no obligation to advise you or any other person with regard to any change after the date hereof in the circumstances or the law that may bear on the matters set forth herein after the effectiveness of the Registration Statement even if the change may affect the legal analysis or a legal conclusion or other matters in this opinion letter.

 

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.

 

Very truly yours,

 

/s/ Paul Hastings LLP  

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 16, 2018, relating to the consolidated financial statements and financial statement schedule of Sorrento Therapeutics, Inc. and subsidiaries (the “Company”) (which report expresses an unqualified opinion and includes an explanatory paragraph relating to substantial doubt about the Company’s ability to continue as a going concern), and the effectiveness of the Company’s internal control over financial reporting (which report expresses an adverse opinion on the effectiveness of the Company’s internal control over financial reporting because of material weaknesses), appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2017.

 

/s/ DELOITTE & TOUCHE LLP

 

San Diego, California

September 12, 2018

 

 

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Sorrento Therapeutics, Inc. and Subsidiaries, of our report dated March 14, 2016, with respect to the consolidated financial statements for the year ended December 31, 2015, which appears in the Annual Report on Form 10-K for the year ended December 31, 2017.

 

 

/s/ Mayer Hoffman McCann P.C.

San Diego, California

September 12, 2018